9. Memorandum from Professor Brice
Dickson, Professor of International and Comparative Law, Queen's
University Belfast
Is a British Bill of Rights needed?
Yes, because the Human Rights Act is not as
comprehensive a human rights document as Britain requires in this
day and age. A more comprehensive Bill of Rights would emphasise
that Britain is committed to upholding human rights not just because
the Council of Europe requires it to protect "Convention
rights" but also because the people of Britain want to live
in a society which places a high value on adherence to a wider
range of human rights standards. Although such a Bill of Rights
would not be fully entrenched (it could not be in a legal system
that is built upon the doctrine of Parliamentary sovereignty)
it would be a clear and (politically) hard-to-repeal statement
of some the fundamental values underpinning the governance of
the nation. It would help to promote solidarity and a concept
of Britishness.
What should be in a British Bill of Rights?
In short, the Bill should set out a list of
the rights which the UK Parliament feels are fundamental to the
British way of life. Many of these are already listed in the Human
Rights Act 1998 (ie the "Convention rights" set out
in Schedule 1 to that Act), so the Bill should embrace that list.
As well, the list should include the right to fair administration,
the right to jury trial for serious offences, the right to health
care, the right to a home for those who are not intentionally
homeless, the right to an adequate standard of living, the right
not to be discriminated against on the grounds of disability,
sexual orientation, genetic features, possession of a criminal
conviction or residence, and the right to privacy.
Most of these "non-Convention rights"
are already recognized to some extent by the legal systems of
England and Wales and Scotland, but the Bill of Rights is an opportunity
to ensure that the rights are better protected and given a status
equivalent to the Convention rights protected by the Human Rights
Act. They would not, of course, be unlimited rights: limitations
could either be written into each relevant section in the Bill
of Rights or (preferably) set out in a more generally worded section
on limitations. It is totally anomalous that rights which happen
to have been protected by the European Convention in 1950 should
be given a higher legal status in the UK today than other rights
which are every bit as fundamental to the British way of life
in the early part of the 21st century. It is not enough that some
of these non-Convention rights are to some extent protected by
case law or by legislation. They need to be strengthened by giving
them a status equivalent to Convention rights—so that senior
judges can declare legislation which violates those rights to
be incompatible with the Bill of Rights.
Should the British Bill of Rights include responsibilities?
I see no difficulty in including some responsibilities
in the Bill of Rights, provided it is made clear that a person's
entitlement to rights is not dependent on his or her having fulfilled
these responsibilities. The Convention rights in the Human Rights
Act 1998 already include some responsibilities—see the wording
of Articles 8 (2), 9 (2), 10 (2), 11(2) and 17, and also Article
1 of Protocol 1. Article 17 of the European Convention is often
forgotten: it effectively says that no State, group or person
has the right to engage in any activity or perform any act aimed
at destroying any of the rights and freedoms set out earlier in
the Convention, or at limiting them to a greater extent than the
Convention allows. This is tantamount to asserting that everyone
has the responsibility to recognize the rights and freedoms of
others (including those which Articles 8 (2), 9 (2), 10 (2) and
11 (2) accept can limit other individuals' rights).
Responsibilities, or duties, are already mentioned
in some modern Bills of Rights, such as the African Charter on
Human and People's Rights of 1981 and the Victorian Charter of
Rights and Responsibilities of 2006. India amended its Constitution
in 1976 by inserting a new section 51A listing more than 10 duties
of every citizen of India. These include the duties to "renounce
practices derogatory to the dignity of women", "to safeguard
public property and abjure violence", and "to strive
towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels
of endeavour and achievement'. Inserting some responsibilities
in a British Bill of Rights could help to sell the notion of a
Bill of Rights to a sceptical public and the provisions would
not have to go beyond existing legal duties (eg to respect the
law, to recognise the value in having a diverse and pluralistic
society, and to treat people with dignity). It would be better
if the Bill of Rights did not say what the sanctions are for not
meeting one's responsibilities: this should be left to existing
law.
There are precedents for such hortatory provisions
within UK law. For example, section 1 of the Constitutional Reform
Act 2005 asserts that there is an "existing constitutional
principle of the rule of law', while section 3 (1) states that
the Lord Chancellor, other Ministers and everyone who has responsibility
for matters relating to the judiciary or otherwise to the administration
of justice "must uphold the continued independence of the
judiciary".
What should be the relationship with the Human
Rights Act and international human rights obligations?
The Human Rights Act 1998 has served the country
well to date. Allowing senior judges to declare primary legislation
to be incompatible with Convention rights, rather than giving
them the power to declare such legislation to be invalid, is a
good compromise between the doctrine of absolute Parliamentary
sovereignty and a US-style doctrine of constitutional judicial
review. A British Bill of Rights should therefore build on the
Human Rights Act by placing the additional rights within the same
implementation framework as is used for Convention rights, although,
of course, there would not necessarily be the option of lodging
an application in Strasbourg if the UK courts did not uphold the
interpretation of the additional right argued for by a litigant.
To the extent that the British Bill of Rights
is to include rights already recognized by international human
rights treaties which the UK has ratified, care should be taken
to ensure that the wording of the right in the Bill is not inconsistent
with the wording of the right in the treaty. This would apply,
for example, to children's rights, the rights of persons with
disabilities, and economic and social rights.
What should be the impact of a British Bill of
Rights on the relationship between the executive, Parliament and
the courts?
As noted above, I am firmly of the view that
the new Bill of Rights should build upon the model of the Human
Rights Act, which means that the relationship between the executive,
Parliament and the courts created by that Act should be perpetuated
by the British Bill of Rights. The new Bill should contain a provision
comparable to section 19 of the Human Rights Act, whereby a Minister
in charge of a Bill in either House of Parliament should have
to make a statement to that House on the extent to which the proposed
Bill is compatible with the Bill of Rights. Section 10 of the
1998 Act (power to take remedial action) should also be mirrored
in the new Bill of Rights.
The relevance of the Northern Ireland dimension
to this debate
Having chaired the Northern Ireland Human Rights
Commission for its first six years (1999 to 2005) I have been
centrally involved in trying to devise a "Bill of Rights
for Northern Ireland" (a document which the Belfast (Good
Friday) Agreement contemplates but does not actually require).
During that time many of the issues now arising for consideration
concerning a British Bill of Rights had to be confronted in a
Northern Ireland context. I am convinced that the best way forward,
both in Northern Ireland and in the rest of the United Kingdom,
is to build upon the Human Rights Act, especially its implementation
mechanisms. Those mechanisms have allowed a conversation to develop
between the executive, Parliament and the judges as to how best
to reform the legal system to ensure that human rights are appropriately
protected. The Northern Ireland Human Rights Commission, in 2004
and 2005, stated that it was in favour of a Bill of Rights for
Northern Ireland which would take the form of a Bill of Rights
for Northern Ireland Act, passed at Westminster after being approved
by the Northern Ireland Assembly and by a referendum in Northern
Ireland. The Bill of Rights for Northern Ireland Act would include
a provision stating that "The Convention rights as set out
in the Human Rights Act 1998 shall be considered a part of the
Bill of Rights for Northern Ireland". I am not sure if this
is still the thinking of the Northern Ireland Human Rights Commission—the
Commission may well be officially agnostic on the point at present
because none of the current members of the Commission was a member
at the time of the 2004 and 2005 statements and the Commission
is in any event awaiting the recommendations of the Bill of Rights
Forum in Northern Ireland, which is due to report to the Commission
by the end of March 2008.
The suggestion that there should be a British
Bill of Rights has complicated the debate in Northern Ireland.
Does "British" embrace Northern Ireland or not? If yes,
where does that leave the suggestion in the Belfast (Good Friday)
Agreement that there could be a Bill of Rights just for Northern
Ireland? If no, might this not alienate people of a unionist frame
of mind in Northern Ireland, who could feel that somehow their
Britishness was being compromised if they were given a Bill of
Rights which was different from the one applying elsewhere in
the United Kingdom and which, if the Belfast (Good Friday) Agreement
is followed to the letter, was to be supplemented by a comparable
human rights document in the Republic of Ireland? My own view
is that there should be a Bill of Rights for the whole of the
United Kingdom (just as the Human Rights Act applies throughout
the United Kingdom) but that each separate legal system within
the UK should then be free to devise an additional Bill of Rights
going further than the national Bill of Rights has gone and dealing
with particular matters that are of concern to that legal system.
These additional Bills of Rights would best be enacted as Westminster
legislation, thereby placing them beyond repeal or amendment by
any devolved legislature.
7 January 2008
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